Reis v. Cintas, 2011 HRTO 472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Reis Applicant

-and-

Cintas Corporation Limited, Julie Mekker and Rudy Thebaud Respondents

RECONSIDERATION DECISION

Adjudicator: Faisal Bhabha Date: March 7, 2011 Citation: 2011 HRTO 472 Indexed as: Reis v. Cintas

BACKGROUND

1The applicant filed an Application alleging violations of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondents requested that the Application be dismissed on the basis that it was filed beyond the one-year time limit prescribed in section 34 of the Code. A hearing was held on September 30, 2010, to hear evidence regarding the issue of delay. On December 30, 2010, the Tribunal issued a Decision, 2010 HRTO 2544 (the "Decision"), finding that the Application was late and that the applicant had failed to demonstrate good faith warranting an extension of the deadline.

2On January 29, 2011, the applicant's representative filed a Form 20 requesting Reconsideration.

REQUEST FOR RECONSIDERATION

3Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

4It is also useful to consider the Tribunal's Practice Direction on Reconsideration, which states in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

5In the Decision, the Tribunal found that the applicant had failed to demonstrate "good faith" within the meaning of section 34(2) of the Code in bringing her Application in a timely manner. The Application was therefore dismissed.

6The applicant objects to the Decision and, on the Form 20 Request for Reconsideration, checked off all four factors under Rule 26.5. The applicant's submissions identify just one reason for the Request, being a concern about the Tribunal's "defective computer system that has seriously affected the Applicant's case." Specifically, the applicant claims that the Tribunal's Registrar failed to provide the adjudicator with "all the materials filed and that were required prior to that preliminary hearing." The applicant asks for a fresh hearing so that "all the materials" may be placed before the Tribunal.

DECISION

7Reconsideration is an exceptional measure designed to correct clearly identifiable flaws or errors in a final Decision of the Tribunal. It is not an opportunity to make broad challenges to the findings, analysis or conclusions of the Decision. The power to reconsider is exercised in accordance with the factors contained in Rule 26.5, cited above.

8The applicant does not explicitly link the concerns about documents at the hearing to any of the four grounds of Reconsideration. I can infer that the applicant may be relying on factor (a), that there are "new facts or evidence that could be potentially determinative of the case and that could not reasonably have been obtained earlier". Or, she may be relying on factor (d), which allows for consideration of "other factors" that "outweigh the public interest in the finality of Tribunal decisions", though she does not specify any "other factors".

9While the applicant argues that some of the material she filed was not provided to the adjudicator prior to the hearing, she has not identified any specific materials. The applicant also refers to materials the respondent was "relying on or referring to" that also were not in the adjudicator's file. Again, the applicant has not specifically identified which materials she is referring to.

10The applicant describes the missing materials as "pages of the Applicant's Application and other documents". The applicant states that because these documents were not before the adjudicator, "it was difficult for the Applicant to show that this information was only background material and that other documents were directly related to her HRTO Complaint." The applicant does not specify what "information" and "other documents" she is referring to.

11On my review of the file, I am not convinced that there were any documents that either party wished to rely on that were not available to be admitted into evidence and referred to by the parties in their submissions. During the course of the hearing, it became apparent that some of the materials filed by the parties were missing some pages, or had some duplicated pages. The defects were identified and remedied during the hearing and the parties had full opportunity to adduce evidence and rely on documents of their choosing. No objections or concerns were raised at any time prior to this Reconsideration Request and no party took the position at the hearing that they were prejudiced by the minor clerical errors.

12In terms of "other factors" under Rule 26.5, the applicant appears to be arguing that the mere fact of administrative error, absent any actual and identifiable impact on the fairness of the hearing, is reason enough for reconsideration. I do not agree with that view. Administrative error, perceived or actual, does not lead presumptively to a conclusion that the Decision needs to be reconsidered. It is important that alleged errors be particularized and clearly linked to one of the four grounds for reconsideration.

13The Request makes only a broad claim that the adjudicator's file was incomplete and therefore "seriously affected the Applicant's case". No detail is provided as to how the applicant was affected, what documents were either missing or misnumbered, and how these "errors" prejudiced the applicant's ability to advance her case. The applicant has not established a link between the evidence that was heard and what is claimed to be missing.

14Although there were some minor deficiencies in the adjudicator's file, these administrative issues did not have any impact on the Tribunal's ability to hear and decide the case. The parties had a full opportunity to advance their positions. Both sides relied on documentary evidence and called witnesses to testify. There is no assertion that legal rules were misapplied or that principles of natural justice were breached.

15Furthermore, the Request fails to specify any harm, other than a general claim that the applicant's case was "seriously affected", or request any specific remedy, beyond convening a new hearing. The applicant appears to be contesting findings of fact, though she does not explain how those findings are deficient, whether and how any of the additional materials would have been relevant to the conclusions drawn in the Decision, or why these arguments were not raised in the hearing. Instead, the Request simply repeats assertions of fact that are contrary to the findings in the Decision.

16The applicant states: "At no time from the time of the unjust dismissal to October 21, 2008 was the Applicant made aware that her employment was terminated because she spoke Portuguese at the work place." At the hearing, the applicant and the respondent's witness, who was alleged to have made the "confession" regarding the reason for termination during the October 21, 2008 meeting, testified and the Tribunal determined that the applicant's assertions lacked credibility. On the basis of the evidence, I found that, if the applicant believed she was terminated for speaking Portuguese at work, her knowledge of a potential Code issue would have crystallized sooner than during the October 21, 2008 meeting. I did not accept that the respondent had made a "confession" or that this was the earliest date that the applicant "discovered" the allegedly discriminatory reason for her termination. The applicant has not claimed that there is any new evidence that supports a different conclusion. She has therefore provided no basis for reconsideration of these findings of fact.

17The applicant has not satisfied me that any of the factors contained in Rule 26.5 are present to warrant reconsideration of the Decision. Reconsideration is not an opportunity to appeal the outcome of a final Decision. As set out in the Tribunal's Practice Direction, referred to above, the Tribunal will generally only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

18In light of the above, the Reconsideration Request is denied.